By Hui-Yi Katherine Tseng

The South China Sea Award: Paradox of the Historic Argument

On 12 July, the Arbitral Tribunal established under
Annex VII in the Law of the Sea Convention (the Tribunal) issued the award for
the first South China Sea arbitration. Despite the legal wrestling surrounding
provisional interpretation and application, this award sends a timely message,
reminding us how the globe has become further flattened and how the contemporary
world order has been drastically reconfigured. Amid the continuing evolution of
the situation and growing wariness of other claimants, the award is indeed a
game changer in the following dimensions.

Institutional Lessons

First, this award reminds us, again, of how a
proliferation of special legal regimes, along with the establishment of special
tribunals since the 1990s, has re-shaped the legal landscape of generational
law.

From the beginning, China holds the position that this
Tribunal was not duly authorized to rule on territorial disputes, the essence
deemed by China of the South China Sea dispute. After the award was issued,
China heightened its criticism of the Tribunal, saying that it was not a
regular international court and had no relations to the international judiciary
system under the UN framework.

China’s criticism on the institutional dimension of the
international judiciary system reveals two things: China’s enduring lack of
trust of the international third-party adjudication system, and its lack of
understanding of the rapidly changing international judiciary order.

China consistently held a doubtful attitude toward the
international judiciary system. It was not until 2009 that China first
participated in proceedings at the International Court of Justice (the Court).
A Chinese legal expert appeared before the Court as a counsel for China in the
oral hearings of the Kosovo advisory proceedings held in December 2009.1 In September 2010, the expert, Xue Hanqin, became the Chinese Judge in the
Court.

In October 2013, China made a statement to the UN
General Assembly on the Rule of Law at National and International Levels. The
statement also verified that China’s skepticism toward international
adjudication remained deeply engrained in their minds. In the statement, China
reaffirmed its support for Article 33 (1) in the UN Charter,2 but
left out “arbitration, judicial settlement, resort to regional agencies or
arrangements” in its should-be verbatim reaffirmation of the spirit of the provision.
For China, arbitration and judicial settlement are two categories inappropriate
for the concept of peaceful settlement. The Chinese government also insisted
that states’ consent should be obtained before these legal courses are initiated.

Besides the enduring lack of trust, China seems also
to lack a systemic understanding of the rapidly changing landscape of
international judiciary mechanisms. Their attacks on the institutional
dimension of the South China Sea arbitration are revealing in this aspect.

This Tribunal was a special tribunal established
according to the Law of the Sea Convention. It was duly authorized by the
Convention to look into maritime issues. As a special tribunal, its role and
responsibility were different from those of conventional courts such as the
International Court of Justice. It was in the 1990s that there began a
proliferation of these special tribunals, a corollary of the booming of special
legal regimes. Three most frequently-cited examples are the World Trade
Organization Dispute Settlement Body, the European Court of Human Rights, and
the International Tribunal for the Law of the Sea (ITLOS). This special
tribunal is the default choice of the list of semi-compulsory mechanisms listed
in Part XV (Settlement of Dispute), Article 279 to 299, in the Law of the Sea
Convention. The ITLOS is the primary choice.

These special tribunals deem themselves as the role of
norm-advancement of these special legal regimes, and their responsibilities lie
in following aspects: developing the jurisprudence and establishing the spirit
of rule of law of the special legal regimes. Therefore, they tend to adopt a
rather adventurous attitude, and are inclusive to creative ideas. Not
surprisingly, their rulings can be rather aggressive, in particular to the more
disadvantaged parties, while triggering subsequent reactions. It is fair to say
that dispute settlement is not their primary purpose. Despite their often
proactive attitudes and revolutionary decisions, they often emphasize
inter-state cooperation as an important and mutually-beneficial means. It is thus
often described that these special tribunals are transforming the international
legal system from a law of co-existence to a law of co-operation.

This Tribunal seemingly fully lives up to these expectations.
By identifying itself as a norm-advancement role, rather than a war-prevention
instrument, the Tribunal’s intention in advancing the jurisprudence of the law
of the sea regime is self-proven, even at the cost of further catalyzing the
tension.

Paradox of Historic Argument

Second, the Chinese strategy in defending its South
China Sea claims requires second thoughts. Although China has refused to
participate in the proceedings from the very beginning, it submitted plenty of
documents and position papers to verify its claims. China has relied on
historic arguments very much, and is often described as fleshing out its claims
in historical discourse. Yet, historic argument is a double-edged sword that
China should handle with extra caution.

On one hand, it is likely that historic arguments tend
to be self-claimed and self-justified. Further, historic arguments generally
are regarded as hindsight, for the purpose of serving certain policy goals. In
other words, despite the fact that these historic incidents did occur, they
were conducted generally for purposes very different from those outlined in
contemporary disputes. The contextual considerations were also very different.
As a result, these historic incidents tend to be selective in nature and
reconfigured in the narrative, in order to serve the interests of contemporary
government. This echoes the enduring inquiry of the interpretation of history and
the objectivity of the interpretation.

On the other hand, historic argument is as troublesome
as nationalist sentiment can be. International courts and tribunals tend to
decline to deal with historic argument, rendering it a secondary position in
the list of considerations when making decisions. Rather, realistic factors,
such as effective controls and consistent management, are generally attached
with primary importance. The logic of these tribunals and courts is that
sovereignty is the one most sacrosanct claim vested upon every nation state,
which stipulates that the nation state need not and should not be subordinated
to any authorities claiming overlordship, in whatever manifestation, above
them.

This award, as a declaratory judgment,
seemingly does not require certain implementation acts to deliver its
effectiveness.

To some extent, international judiciary organs assume
such a supra-state role when states bring their disputes to international
courts and tribunals. In particular, when states claim historic arguments, it
is even more burdensome for the international courts and tribunals. To
determine a contemporary dispute based on historic arguments will likely influence
the compromise reached in the legal instrument, in this case, the Law of the
Sea Convention which reflects a consensus among various interested groups, and
a delicate balance between the obligations of different generations.

Further, a decision based on historic arguments is
likely to trigger criticism that the hard-won consensus on racial equality is
to be overshadowed, and in the worst case scenario, overthrown, because such a
decision suggests, however implicitly, a judgement on the supremacy of one
nation over another.

Pragmatic View on Implementation

Third, the implementation issue requires further
consideration. China has repudiated the award since it was released. Observers
generally believe that this award is likely to be unenforceable, and therefore,
will lapse into dormancy. Yet, there are some points that require
reconsideration when discussing the issue of implementation.

The concept of “implementation” should be
distinguished from the legal term “compliance.” “Implementation” should be a
broader category, and inclusive of “compliance.” In other words, when thinking
about “implementation”, it should not be confined only to “compliance” in a
legal sense, and should be deemed as comprising all the actions that may
facilitate or result in compliance. That said, the obligation of execution
remains the backbone of implementation, so as to honor the credibility of law
and to defend the integrity of jurisprudence. In this sense, even with a main
theme of an obligation to execute the judgment, the concept of “implementation”
should be broadened to be inclusive of conduct that may result in partial
compliance, or may go beyond compliance.

It is not rare that implementation itself requires
certain enabling acts that give little indication as to whether compliance will
eventually take place. Yet, in these scenarios where partial or non-compliance
occurs, one inquiry is that if there exist other considerations when discussing
the implementation issue, such as the realization of the regulatory goal
underlying a certain rule, rather than the rule itself. In other words, despite
the sacrosanct value attached to a legal decision in terms of credibility and
integrity of the law, in reality, the effectiveness of a pronouncement is not a
guarantee of its efficacy.

This paradox is overtly discernible in international
courts’ judgement and tribunals’ awards, in particular, judging that
international law is often described as lacking legal teeth. In the scenario of
the South China Sea arbitration, this implementation issue triggers concerns.

To begin with, the tribunal’s decision is seemingly
more a declaratory judgement, rather than a constitutive judgement. The former
spells out the content or recognizes the existence of disputed rights, while
the latter declares a new right. The former does not technically need any
implementation act. In several critical issues, such as the historic right
claimed under China’s nine-dash line claim and the definition of islands and
rocks, the award spells out the content, scope and limitation of these
concepts, without engaging technical measures deemed necessary to accomplish
the analysis and deliver the effectiveness of the award. In this sense, this
award, as a declaratory judgment, seemingly does not require certain
implementation acts to deliver its effectiveness.

A second point is in the post-arbitration phase,
implementation — be it full or partial of the award — is ultimately determined
by the will of parties. It is for them to decide the place that the “juridical
component” should have in their dispute, according to what proves feasible and
appropriate under their existing political relationship. As a result, a
comprehensive analysis of implementation may need to take into account what
happens during the pre-arbitration phase or other factors that may intervene this
process, such as other actors’ behavior.

In the post-arbitration phase in the South China Sea
scenario, this seemingly fits the complex picture of the dispute which
continues to evolve not only between China and the Philippines, but also among
other claimants and stakeholders. Therefore, what can be anticipated is the much-expected
negotiations between China and the Philippines over their disputes. What role
would the award play in their negotiation is heavily-speculated. The
Philippines will have more bargaining leverage, while China has shown its willingness
to open bilateral talks with the Philippines immediately after the award was
issued.

Afterword

The arbitration has come to an end, but a new era has
been opened. China is facing criticism from all over the world, but it also has
new opportunities to trim down unnecessary details in its claims, re-calibrate
its policy goals, and re-evaluate its strategic tactics in this enduring South
China Sea battle.

The South China Sea
dispute has become highly politicized. Yet, the reality is, by not being able
to tackle the South China Sea issue, China’s regional relations and relevant
policies, such as the 21st Century Maritime Silk Road plan, may run the risk of
being further attenuated, dis-credited, and to the extreme, debilitated.
Creative thinking, rationality and practicality, and an open-minded attitude
are required for a sustainable and beneficial resolution.

Notes

1. It was also in 2009 that China chose to take part in
the first ever advisory proceedings before the International Tribunal for the
Law of the Sea (ITLOS). In the proceedings before ITLOS regarding the Responsibilities
and obligations of States sponsoring persons and entities with respect to activities
in the International Seabed Area, China submitted a written statement and
argued that the Court ought to exercise its jurisdiction in the proceedings.

2.
“The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.”

About The Author

Hui-Yi Katherine Tseng is a Research Associate at East Asian Institute, National University of Singapore. Her research interests range from international trade dispute resolutions in World Trade Organization to maritime conflict management and disputes resolution in East Asian areas.